United States District Court, N.D. Ohio, Western Division
Kiesha L. Holmes, et al., Plaintiffs Pro Se,
Toledo Gaming Ventures, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
ZOUHARY U.S. DISTRICT JUDGE.
pro se Kiesha Holmes and Kohrea McKinney sue
Defendants Toledo Gaming Ventures (Hollywood Casino) and
Casino Security Manager Milissa Winter for race
discrimination in violation of 42 U.S.C. § 1981 and Ohio
Revised Code § 4112.02 (Doc. 21). Specifically,
Plaintiffs claim Winter discriminated against them by (1)
treating them in a “markedly hostile” manner, and
(2) ordering them to leave the casino in retaliation for
making a complaint of race discrimination by another casino
employee (Doc. 21 at 19-21). Defendants move for summary
judgment (Doc. 46), Plaintiffs oppose (Doc. 54), and
Defendants reply (Doc. 62). This Court held a Record Hearing
on April 27, 2017, during which it heard testimony and
argument related to the casino surveillance video (Doc. 69).
(The video is visual only with no sound.)
following facts are undisputed, unless otherwise noted.
Holmes, her daughter McKinney, and McKinney's
fiancé, Dwann Moore, arrived at Hollywood Casino
shortly after midnight on January 2, 2016 (Holmes Dep. Tr.,
Doc. 46-2 at 49). At around 3 AM, they approached the Tarzan
slot machine area, but all the slot machines were in use
(Doc. 46-2 at 50; McKinney Dep. Tr., Doc. 46-3 at 40). Some
casino patrons were playing more than one machine at a time,
and others leaned chairs against the machines to reserve them
while leaving the slot machine area (Doc. 46-2 at 50-52, 63;
Doc. 46-3 at 39-40). Holmes and McKinney observed these
practices, as did a white woman who was also waiting for slot
machines (Doc. 46-2 at 50; Doc. 46-3 at 38-39). The other
woman asked Security Officer Ryan Spencer whether patrons
were allowed to play two machines at once (Doc. 46-3 at
39-42). Spencer responded that he believed this was okay, but
he would have to check with a manager (Doc. 46-3 at 41-42).
was standing close enough to hear the conversation between
the other woman and Spencer (Doc. 46-3 at 39-40). After
Spencer answered the woman's question, McKinney
approached him and asked whether patrons were also allowed to
lean their chairs against the machines to reserve them (Doc.
46-3 at 40). Spencer responded with a rhetorical question
along the lines of “You wouldn't want them to piss
on their [sic] self, would you?” -- or perhaps
“You wouldn't want nobody [sic] to piss at the
machine, would you?” -- apparently suggesting that
patrons reserved slot machines in this way while leaving the
casino floor to use the restroom (Doc. 46-3 at 40, 42, 45,
56). Spencer walked away, and McKinney reported Spencer's
comment to Holmes (Doc. 46-2 at 67-68).
Spencer returned to the slot machine area a few minutes
later, Holmes and McKinney confronted him about his
unprofessional behavior. Holmes complained that Spencer had
been polite to the white woman but disrespectful to her
daughter, who is black (Doc. 46-2 at 67-68, 70; Doc. 46-3 at
48-49). Spencer listened to Holmes' complaint,
apologized, and left (Doc. 46-2 at 67; Doc. 46-3 at 49). He
then reported to Winter, his manager, and admitted he had
used the word “piss” to a customer (Winter Dep.
Tr., Doc. 46-6 at 6). Before Winter could discuss the
incident further, she was called to the Player Services desk
to respond to a customer (Plaintiffs)complaint (Doc. 46-6 at
Holmes, McKinney, and Moore discussed what had happened and
decided to make a complaint about Spencer's behavior
(Doc. 46-2 at 73; Doc. 46-3 at 54). They approached the
Player Services desk, and Winter was called down to the
casino floor to speak with them (Doc. 46-2 at 79; Doc. 46-3
at 55). She was accompanied by another security officer (Doc.
46-2 at 81; Doc. 46-3 at 55). Holmes and McKinney claim that
Winter seemed agitated, like she “was on a
mission” (Doc. 46-2 at 84; Doc. 46-3 at 55). Winter
acknowledges she was “aggravated” by her
conversation with Spencer about his behavior, but she denies
allowing her irritation to spill over into her interaction
with Holmes, McKinney, and Moore (Doc. 46-6 at 8).
described her encounter with Spencer and complained that
Spencer had been polite to a white patron but “very
rude and disrespectful” to her (Doc. 46-3 at 58).
Winter responded that the conduct described by McKinney was
inappropriate and unprofessional, and she did not condone his
use of the word “piss” (Doc. 46-3 at 58; Doc.
46-6 at 6). Holmes then interjected and explained that
“what really bother[ed]” her was how Spencer
treated the white patron differently from her daughter, who
is black (Doc. 46-2 at 82). The parties dispute the exact
wording of Winter's response, but she said either that
she was sure Spencer's behavior had nothing to do with
race (Doc. 46-2 at 86-87; Doc. 46-3 at 60), or perhaps that
the casino does not hire racist individuals because it is a
customer service business (Doc. 46-4; Doc. 46-6 at 6). The
parties agree that Plaintiffs then replied, in unison, either
“of course you would say that” or “of
course you don't think it's racist” (Doc. 46-2
at 88; Doc. 46-3 at 60; Doc. 46-4).
parties also agree that Winter then asked Holmes, McKinney,
and Moore to leave the casino. But they vehemently contest
how and why she asked them to leave. Holmes and McKinney
claim Winter declared “well, since you're going to
make it racial, get out” (Doc. 46-2 at 82; Doc. 46-3 at
60, 71). They believe Winter ejected them because they made a
complaint about racial discrimination. Winter, on the other
hand, contends Holmes and McKinney were being loud and
drawing attention to the confrontation at the Player Services
desk (Doc. 46-6 at 9-10). She says she asked them to leave
for security reasons, as Spencer was still scheduled to work
for the rest of the night, and she did not want to risk
another incident if he encountered Holmes or McKinney again
on the casino floor (Doc. 46-6 at 10). She denies saying
“if you're going to make it racial, get out”
(Doc. 46-6 at 10).
Holmes, McKinney, and Moore began to walk away, Winter
stopped McKinney and asked to see her photo ID (Doc. 46-2 at
87; Doc. 46-3 at 66; Doc. 46-6 at 7). Casino policy requires
staff to check the identification of any patron who appears
to be under age thirty, though the parties dispute whether
Winter explained this policy at the time (Doc. 46-2 at 91,
93; Doc. 46-3 at 68; Doc. 46-6 at 7). McKinney retrieved her
driver's license from her purse but did not hand it to
Winter. Instead, she held the license up near her face (Doc.
46-2 at 90; Doc. 46-3 at 68-69). Winter contends McKinney
held the license so that her finger obscured the photo and
date of birth (Doc. 46-6 at 7). After Winter checked
McKinney's license, McKinney, before leaving, headed to
cash out a gambling ticket (Doc. 46-2 at 95; Doc. 46-6 at 8;
see also April 27, 2017 Hearing Transcript). Winter
and the other security guard accompanied Holmes, McKinney,
and Moore to the casino ATM machines (Doc. 46-2 at 103).
McKinney was cashing out her ticket, Holmes made a comment
about knowing brothers in Las Vegas. The parties dispute
exactly what was said. Holmes says she asked for Winter's
name and told her she planned to report her to the brothers
who own the Hollywood Casino in Las Vegas --believing,
mistakenly, that they also own the Toledo establishment (Doc.
46-2 at 98-99; Doc. 46-3 at 67, 74). Winter, however, claims
Holmes threatened that she knew brothers who would
“take care of” Winter (Doc. 46-4; Doc. 46-6 at 6,
and the other security guard followed Holmes, McKinney, and
Moore to the exit (Doc. 46-2 at 104). McKinney alleges Winter
followed so closely behind her that she “walked up
on” McKinney's heels (Doc. 46-3 at 76-77). McKinney
also alleges that she turned around and asked Winter not to
follow her so closely (Doc. 46-2 at 105; Doc. 46-3 at 76,
78). McKinney claims Winter responded by saying she could do
“what she want, how she want, when she want”
(Doc. 46-3 at 78). Winter denies these allegations (Doc. 46-6
at 9, 11). The casino surveillance tape does not show Winter
walking closely behind McKinney, nor does it show McKinney
turning back to address Winter as the group approached the
exit (see Doc. 66).
that day, Spencer received a “verbal counseling”
about using professional language when interacting with
casino patrons, which was noted to ...